Terms of use

By installing the Ellu App, or using the Ellu Band or its Service, you agree that these Terms of Use will represent a legally binding contract between you and us in relation to our provision of the Ellu Products and Services. Please read it carefully before proceeding to use Ellu Products and Services.

These terms of use (“Terms of Use”) are a legal agreement between you (“Customer” or “you”) and Pax Bands Ltd of 4 Cresswell Gardens, London, England, SW5 0BJ dba The Ellu Company LLC (“Ellu”, “us” or “we”) for:

provision and use of the Ellu mobile application (the “Ellu App”) and associated products and software, together with any online documentation displayed from time to time on our Website (“Documentation”), which we collectively refer to as the “Ellu Software”;

your use of the Ellu Band, a band wearable principally consisting of a Bluetooth chip, vibrator, its firmware, and lithium battery (the “Ellu Band”). The Ellu Band sends & receives signals through a Bluetooth connection to a smartphone/tablet device.

Our “Website” means www.ellucompany.com or any subsequent web address to which we move our primary site.

When we refer to the “Ellu Service”, we are referring to the Ellu Software, the Ellu Band itself, our Website, the Ellu App, any Updates (as defined below) and other associated services relating to the Ellu Band that we may provide to you from time to time.

Although you own any Ellu Band you purchase from one of our authorised distributors or directly from us, it is important to remember that we remain the owners of the Ellu Software and our Website.

We recommend that you print a copy of these Terms of Use for your future reference.

Information about us

You can contact us by writing to us at support@ellucompany.com.

What do you need in order to use the Ellu Service?

In order to use the Ellu Service you need to ensure that you have a device which meets the compatibility requirements outlined from time to time. You should be aware that these compatibility requirements may change from time to time as we upgrade the Ellu Service, so you should check them regularly to see what they are. See Compatibility Requirements: http://mmuuy.wzhjf.servertrust.com/Articles.asp?ID=259 Examples of compatibility requirements we might set include: having access to the Internet, mobile connection & Bluetooth connection, running a particular operating system (or version of that operating system) on your equipment or device, making your location known through GPS or other means on your device, and having a minimum amount of memory on your equipment or device.

Key terms and how the agreement is formed

By installing the Ellu App or using any element of the Ellu Service, you agree to these Terms of Use which will bind you.

The key terms you should consider are the limitations on liability contained in the section titled Our Responsibility for Loss or Damage Suffered by You.

What to do if you don’t want to accept these Terms of Use?

If you do not agree to these Terms of Use, we will not license the Ellu Service to you and you must either stop the download process or, if any part of the Ellu Service has been installed on your device, immediately uninstall it. In either case, you must immediately stop using the Ellu Service.

Accounts

Account Creation. In order to use certain features of the Ellu Service, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form.

Password and Account Protection. We encourage you to use unique numbers, letters, and special characters in setting your account password. Do not disclose your passcode to anyone.

Accurate and up-to-date Information. All the registration information you submit must be truthful and accurate. If for any reason any information you submit becomes untruthful, inaccurate and/or incomplete, you agree that you will update that information on your Account to maintain its accuracy.

What to do if you want to delete your account. You can delete your Account at any time, for any reason, by following the instructions on the Website.

You are responsible for maintaining the confidentiality of your Account log-in information (including, for example, your username and password). Accordingly, you are responsible for all activities that occur under your Account.

What to do if you become aware of, or suspect, unauthorised use of your Account. You should notify us immediately if you suspect or become aware of any unauthorised use of your Account or any other breach of security. (Reach us at support@ellucompany.com). If your password has been compromised for any reason, you should immediately change your password and notify us if you need assistance. You can change your password at any time in your account information.

The Licence.

Ellu hereby grants you a non-exclusive, non-transferable licence to use the Ellu Service subject to these Terms of Use.Please note that from time to time updates to the Ellu App may be issued through the Apple Appstore or the Google Play Store – or we may issue updates, “patches” and corrections of errors to the Ellu Software or any other elements of the Ellu Service (including firmware updates for your Ellu Band) (collectively, “Updates” and each an “Update”). Depending on the nature of the particular Update, you may not be able to use the Ellu Service until you have downloaded the latest version of the relevant element of the Ellu Service and accepted any new terms that might accompany it. Further, we cannot be liable for any problems that result from your failure to properly download Updates.

Please note that if any open-source software is included in any part of the Ellu Service, the terms of an open-source licence may override some of the terms of these Terms of Use.

What terms apply if you buy the Ellu Products and Services from us directly?

If you place an order for Ellu Products and Services from us directly, there are other terms that govern our relationship in respect of that transaction – please see our Terms of Sale for the terms that apply when you purchase Ellu Products and Services from us via our Website.

How can you use the Ellu Service?

You may only install and use the Ellu Service for your personal, non-business and non-commercial purposes.You may:

only use the Ellu App in accordance with any rules or policies applied by the Appstore and the Google Play Store from which you downloaded the Ellu App.

Receive and use Updates as we may provide from time to time – please note, these Updates will not materially impair the operation of the Ellu Service as described in the Documentation. Further, we cannot be liable for any problems that result from your failure to properly download Updates.

Restrictions

Your right to use the Ellu Service is subject to certain restrictions. These are listed and, where necessary, explained below. Accordingly, except as expressly set out in these Terms of Use or as permitted by any local law, you undertake:

not to copy the Ellu Service except where such copying is incidental to normal use of the Ellu Service or where it is necessary for the purpose of back-up or operational security;

not to make alterations to, or modifications of, the whole or any part of the Ellu Service nor permit the Ellu Service or any part of it to be combined with, or become incorporated in, any other programs;

not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Ellu Service nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988 or equivalent applicable local law in your jurisdiction) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Ellu Service with another software program, and provided that the information obtained by you during such activities:

is used only for the purpose of achieving inter-operability of the Ellu Band Software with another software program;

is not disclosed or communicated without Ellu’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and

is not used to create any software which is substantially similar to the Ellu Service;

to keep all copies of the Ellu Service secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Ellu Service;

to include our copyright notice on all entire and partial copies of the Ellu Service (or any element thereof) in any form;

not to provide, or otherwise make available, the Ellu Service in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person; and

to comply with all applicable technology control or export laws and regulations.Use your Ellu Band sensibly! Although not a legal “restriction” on how you can use the Ellu Service, we recommend that you should not use your Ellu Band in circumstances where doing so would be dangerous – for example, when you are driving a car, do not do anything that will distract you from that task.

Intellectual property rights

The intellectual property rights in the Ellu Service are only licensed to you; they are not being sold or transferred to you. This means that you have no rights in, or to, the Ellu Service other than the right to use it in accordance with these Terms of Use.

You acknowledge that all such intellectual property rights in the Ellu Service throughout the world belong either to us or our licensors (as the case may be).

You acknowledge that you have no right to have access to the Ellu Service in source code form or in unlocked coding or with comments, or any other human-readable form.

Summary of your key legal rights

The Ellu Software is “digital content” for the purposes of the Consumer Rights Act 2015 (the “CRA”). Although we do not charge you for it, as this “digital content” is being supplied to you in connection with a physical product (the Ellu Band) for which a price is payable, under the CRA, it must be as described, fit for purpose and of satisfactory quality.What happens if there is a fault with the Ellu Software?

If the Ellu Software is faulty, you are entitled to a repair or a replacement – in practice this repair or replacement will often take the form of an Upgrade which fixes the relevant fault.

If you can show the fault has caused damage to your device, or to other digital content on that device, and we have not used reasonable care and skill, you may be entitled to a repair or compensation.

What happens if there is a fault with your Ellu Band?

If you purchase a Ellu Products and Services from us directly, we may have entered into a contract of sale with you for that Ellu Products and Services – please review any Terms of Sale for further information on the terms that apply to and govern that transaction.

If you have bought your Ellu Products and Services from one of our distributors or any other third party, you should contact them directly to discuss your rights under the CRA in relation to the contract of sale you may have entered into with themOur responsibility for loss or damage suffered by you.

The Ellu Service is not bespoke to you. You acknowledge that the Ellu Service has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Ellu Service meet your requirements.

We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these Terms of Use, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these Terms of Use or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time these Terms of Use are entered into, both we and you knew it might happen.

Because our product relies on Bluetooth, the Internet and Servers, occasional loss of service is foreseeable. We will not be liable to you if you believe the Ellu Service is working but that service has been interrupted for any reason. Interruptions in service will happen.

When are we liable for damage caused by a defect in the Ellu Service?

If the Ellu Service damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an Update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.We are not liable for business losses. We only supply the Ellu Service for your domestic and private use. If you use the Ellu Service for any commercial, business or resale purpose, we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

What we do not exclude. Nothing in these Terms of Use shall limit or exclude our liability for:

death or personal injury resulting from our negligence;

fraud or fraudulent misrepresentation; or

any other liability that cannot be excluded or limited by English law or the law of the State of Maryland.

Terminating the Terms of Use

We may terminate these Terms of Use immediately by written notice to you if you commit a material or persistent breach of these Terms of Use which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.

Upon such termination for any reason:

all rights granted to you under these Terms of Use shall cease;

you must cease all activities authorised by these Terms of Use; and

you must immediately delete or remove the Ellu Software from all equipment in your possession (including uninstalling the Ellu App) and immediately delete or destroy all copies of any element of the Ellu Service then in your possession or control.

How we may use your personal information

General. We will use the personal information you provide to us in accordance with our Privacy Policy, which is incorporated herein.

Location Data. Collecting your location data is a core part of the Ellu Service. This means that certain elements of the Ellu Service will make use of location data sent to us from the Ellu and certain other pieces of your equipment on which you install or access the Ellu Service. You can turn off this functionality at any time by turning off the location services settings for the Ellu App on your device and/or equipment. However, if you do disable the collection of your location data, a large number of the elements of the Ellu Service will not be able to operate and you will lose some of the core benefits of using it. If you use the Ellu Service, and do not disable the collection location data, you consent to our transmission, collection, retention, maintenance, processing and use of your location data and queries to provide and improve location-based and road traffic-based products and services. You may withdraw this consent at any time by turning off the location services settings on your device or other equipment.

Privacy Policy. For more information on how Ellu collects, uses and shares the information that it receives about Customer in performance of the Ellu Service, please refer to our Privacy Policy. See our Privacy Policy here: https://keysearchmarketing.com/privacy-policy/

User Content

“User Content” means any and all information and content that you submit to, or use with, the Ellu Service (e.g., streamed audio or data). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party.

How User Content cannot be used. You confirm and promise to us: that your User Content does not and will not violate our Acceptable Use Policy (see below at the section titled Acceptable Use Policy). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Ellu. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.

Backing up User Content. Ellu is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice – accordingly we recommend you store and backup copies elsewhere. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.Licence for Ellu to use your User Content. So that we can operate the Ellu Service, host and display your User Content, you grant (and confirm and promise to us that you have the right to grant) Ellu a licence to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content on the basis that such licence is:

* irrevocable – once agreed, you cannot remove or restrict our right to use your User Content as described above;* non-exclusive – you and, if you let them, other people can use your User Content;* royalty-free and fully-paid – we don’t have to pay you (either now or in the future) to use your User Content in the fashion described above;* worldwide – we can use your User Content in the fashion described above anywhere in the world; and* sublicenseable – you allow us to authorise other businesses and individuals to use the licence described above, for the purposes of including your User Content as part of the Ellu Service.Moral rights waiver. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

DMCA Policy

We respect the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, we will respond expeditiously to claims of copyright infringement committed using the Ellu website if such claims are reported to our Designated Copyright Agent identified in the sample notice below.

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing and delivering the following DMCA Notice of Alleged Infringement to our Designated Copyright Agent. Upon receipt of Notice as described below, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged content from the Site.

DMCA Notice of Alleged Infringement (“Notice”)

Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.

Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Website or the exact location where such material may be found.

“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”

“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

Provide your full legal name and your electronic or physical signature.

Acceptable Use Policy

The following terms constitute our “Acceptable Use Policy”:Protection of our reputation and third party rights. You agree not to use the Ellu Service to collect, upload, transmit, display, or distribute any User Content: (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libellous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.

Protection of our systems. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Ellu Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Ellu Service unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Ellu Service to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Ellu Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Ellu Service (or to other computer systems or networks connected to or used together with the Ellu Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Ellu Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Ellu Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Ellu Service.

How might we enforce these Terms of Use if you violate them? We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you if you violate the Acceptable Use Policy or any other provision of these Terms of Use or otherwise create liability for us or any other person – the action we take will be determined by us acting in our sole discretion. Examples of action that we might take could include: removing or modifying your User Content, terminating this Agreement and your Account and/or reporting you to law enforcement authorities or relevant rights holder.

Feedback. If you provide Ellu with any feedback or suggestions regarding the Ellu Service (“Feedback”), you hereby transfer to Ellu all rights in such Feedback. You also agree that Ellu shall have the right to use and fully exploit such Feedback and related information in any manner it considers appropriate. Do not send us confidential information in Feedback. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary.

Third Party Services

Third-Party Links & Ads. The Ellu Service may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Ellu Service contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. We do not review, approve, endorse or make any promises with respect to Third-Party Links & Ads.

You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.

Apple Sourced Apps

When you access the Ellu App through, or download it from, the Apple App Store (an “App Store Sourced Application”), the following terms apply:

You will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the ‘Usage Rules’ set forth in the Apple App Store Terms of Service.

You acknowledge and agree that (i) these Terms of Use are concluded between you and Ellu only, and not Apple, and (ii) Ellu, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if applicable) for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Ellu and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Ellu.

You and Ellu acknowledge that, as between Ellu and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

You and Ellu acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Ellu and Apple, Ellu, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.

You and Ellu acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as related to your licence of the App Store Sourced Application, and that, upon your acceptance of these Terms of Use and conditions thereof, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your licence of the App Store Sourced Application against you as a third party beneficiary thereof.

Without limiting any other terms of these Terms of Use, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

How you can contact us. If you wish to contact us in writing, or if any condition in these Terms of Use requires you to give us notice in writing, you can send this to us by email to support@ellucompany.com. We will confirm receipt of this by contacting you in writing, normally by email.How we may contact you. If we have to contact you or give you notice in writing, we will normally do so by email to the email address associated with your Account.

Other important terms

We may transfer these Terms of Use to someone else. We may transfer our rights and obligations under these Terms of Use to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms of Use.Nobody else has any rights under these Terms of Use. These Terms of Use are between you and us. No other person shall have any rights to enforce any of its terms.If a court finds part of these Terms of Use illegal, the rest will continue in force. Each of the paragraphs of these Terms of Use operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.Even if we delay in enforcing these Terms of Use, we can still enforce them later. If we do not insist immediately that you do anything you are required to do under these Terms of Use, or if we delay in taking steps against you in respect of your breaking these Terms of Use, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

Dispute Resolution

You agree that any dispute between you and Ellu arising out of or relating to these Terms of Service, the Ellu Service, or any other Ellu products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Maryland without regard to its conflict of laws principles.Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Ellu, you agree to try to resolve the Dispute informally by contacting support@ellucompany.com. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Ellu may bring a formal proceeding.We Both Agree To Arbitrate: You and Ellu agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@ellucompany.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Columbia, Maryland, or any other location we agree to.Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Ellu will pay all arbitration fees for claims less than $75,000.Exceptions to Agreement to Arbitrate: Either you or Ellu may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Ellu products or Ellu Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.No Class Actions: You may only resolve Disputes with Ellu on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under our agreement.Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Ellu agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Howard County, Maryland. Both you and Ellu consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Ellu products or Ellu Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.